by Damon West
I thought about checking my pockets to make sure he hadn’t picked them already. I was curious to see how far he would take this and how much he would “guarantee” me. Like going on a job interview where you don’t get the job, at least you get the practice interviewing. I played along.
“Andy, this place is saturated with people who have cases full of errors. Hell, everybody in here is innocent if you ask them. Sometimes I think I’m the only guilty person in prison.” I told him I learned in my brief encounter with the law library that the chances for a successful writ were slim, the odds long. “What makes you think you can successfully overturn my conviction?”
Andy was cool as a cucumber as he shared with me this fantasy of a case he once “overturned.” I was studying him hard. Andy’s body language and eye contact betrayed nothing. Everything my experience taught me suggested he truly believed what he was telling me.
For months, Tommy, the old mob guy, had been working with me, teaching me about body language and spotting lies. No doubt Tommy saw an urgent need in teaching me this art since I did not grow up on the streets. Tommy told me he had a cellmate once who would rehearse his lies with Tommy each night, after lights out. As Tommy would often say, “It’s nuts, West. Just nuts.”
I liked Tommy. A lot. Andy, not so much.
I asked Andy why he wasn’t able to overturn his case.
“I did overturn it,” he insisted. He then told me a tale of how he overturned his case, went back to Dallas County, and was hit with a new life sentence. He said he could never overturn that second one and had been here since. He sued TDCJ, the parole board, and every facet of the prison system with frequency while incarcerated. His attitude was that if he was going to be stuck here, they (TDCJ) were going to feel his presence.
His words floored me. Was he serious?
“Wait, let me get this straight, you sued parole? Andy, that sounds suicidal. Why in the hell would you sue the people who have the only key to this place?”
“Because, West, they’re not following the rules. Someone has to keep them in check. They operate independently of any oversight. No one polices parole. The only way to get their attention is through litigation and forcing them to spend money defending themselves.”
I noticed Andy was fired up talking about parole. This guy was more detached from reality than I thought. Who in the hell sues the parole board from inside prison?
“Andy, how many times have you been denied parole?”
“Eleven times,” he answered.
“Do you think they will ever let you make parole?” I asked.
“West, I have to believe they will. I must have hope. After almost thirty-five years in here, I convince myself the heavy lifting is done. If I lose hope, then I’ll probably slit my own throat.”
I understood this. I contemplated suicide after less than two years in here. I have spoken to several old-timers about this, asking them why they’re still here. They all say the same thing. Hope.
Hope can be a dangerous thing.
Somebody, Andy assured me, was going to write my writ of habeas corpus. “I’m the best there is on the unit. I also charge the most, but you get what you pay for. Unless you feel like getting old in this place like me, you need to hire me.”
This was a much better pitch than that garbage he originally approached me with. This was more real. However, there was no way I was letting Andy anywhere near my writ.
I told him I was going to have to explore all my options. “No offense, Andy, but this is my one shot. If I trust someone to do this, I need to feel secure about it. Whether it be you or someone else, my freedom will rest in that person’s hands.”
I stuck out my hand. Andy shook it, looked me in the eyes, and said he was the one who could get me out of here. “Don’t overthink this, West. Your life depends on you hiring me.”
With that, he walked away. What a creepy dude.
I couldn’t wait to tell Tommy how I handled Andy. He’d be so proud. Funny how your life can change, and you find yourself seeking approval of a geriatric mobster. He would also know what to make of all this. I found him in the day room, writing a letter.
Tommy
“Hey there, Old Man, who’re you writing?” I asked.
He smiled, adjusted those ’70s casino-gangster glasses. “My daughter, Tammy.” Tammy and her husband, Mark, were coming to see him in a few weeks. He received word from them that they were going through some rough times right now. He always reminded them that the only one who could help them was
Jesus Christ.
Did I forget to mention Tommy was a deeply Christian man? He is, but not the hypocritical kind of Christian I always refer to as Hypo-Christians. I run from those guys. No, Tommy is the real deal. He uses himself as an example of what living a morally bankrupt life will get you. He once had all the material things life could throw at you, and all the power that came with a criminal enterprise like the Dixie Mafia. Anything he wanted, he took, often at the barrel of a gun.
I told Tommy I needed to pick his brain about something. No rush, just when he had a free moment.
“West,” he said, his old eyes smiling at me, “I have nothing but free time. Let’s go for a walk. You know how I feel about talking out here.”
I did. Tommy always stressed to me that in the penitentiary, the walls have ears. Inmates were always watching and listening. He also thought the new cameras they installed were capable of listening to conversations. He got up slowly, adjusted his glasses, and led me to his cell. His cellmate was there. Tommy spoke softly, telling him we needed the cell for a moment. The guy gathered his things and left.
Tommy invited me over to the seat at the desk. Then, he asked if I would like something to drink or eat. Once certain his company was taken care of, he sat on his bunk. He always carried himself with manners and class.
“What’s on your mind, West? Having trouble with Andy? Saw y’all talking.”
“You don’t miss much, Old Man,” I joked. He lets me call him Old Man. Only me. I told him Andy was following up with me after my trip to the law library today, that I’d been approached by four or five of these guys, asking if they could help me with my writ.
“West,” he said, looking down from his glasses perched on the tip of his nose, “I already know.” He confirmed the word was out on the street that I needed a lawyer, and even told me a few of the books I used in the law library.
“These vultures are worse than lawyers in the free world,” Tommy said. “At least out there, they go to school. You aren’t thinking about hiring one of these con men, are you?”
I laughed at the use of the term “con men.” That’s exactly what someone my dad’s age would call them, which makes perfect sense because Tommy was my dad’s age.
“No, Tommy, I guess not,” I said, deflated. I told him I thought Andy was the sharpest one of the whole lot so far, but that the bar was set pretty low.
Then, I shared with him that I was able to catch Andy in a lie by observing his eyes and body language when I pressed him for details about the two cases he claimed to have overturned.
“Felt pretty triumphant, Tommy. Knew you’d appreciate that.”
He laughed. “Don’t pat yourself on the back too hard, West.”
He said Andy was a pathological liar and spotting one of his “tells” was no great feat. He was confused as to why I was even considering hiring one of those “riff-raffs” to do my writ.
“Someone’s gonna have to do it. I’m running out of time to file this thing.”
“West, I’ve known for some time now who’s gonna write that writ. You’re gonna write it.”
He said I had as much chance overturning my case as Andy or anyone else did. The truth was, no one ever won a pro se writ, and if I managed to do so, I’d be the first he’s ever seen.
“Besides, you’re as smart as anyon
e I’ve ever met.” He smiled. “The street smarts, not so much, but we’re working on that.”
My smile was fleeting, half-hearted. I told Tommy I didn’t know anything about the law. That even though he may think I’m smart, I knew my own limits. “Writing an advanced legal brief like that, where my life is on the line, is not in my wheelhouse. I couldn’t possibly do it. No way!”
“Damon,” he said, using my first name for the first time since we met, “not only do I think you’re capable of writing this writ, I was told you’re writing it.”
He saw the confusion written all over my face and answered my unasked question. “God told me.”
I have to admit it makes me uncomfortable when someone tells me something like that. So many in here are charlatans. Not that I thought Tommy was, it was just something I had learned to guard against. I mean, I understood God talking to you, because He talked to me all the time through prayer and meditation. I decided to keep listening to Tommy. As far as I knew, he had never lied to me.
“All right,” I said. “What else did God tell you about me writing this writ?”
He got up, put his hand on my shoulder, and said, “Come with me, West. Let’s go talk to the guy who is going to show you what all those books in the law library do.”
Winston
I followed him to the cell of a little old black man from Galveston. His last name was Winston. He and I had interacted a little. All our encounters were pleasant, too. Nice guy, who also appeared to be intelligent–a rare bird in this place. Always willing to help others, Winston had the respect of everybody on the pod. Not the same kind of respect Tommy commanded, but respect nonetheless. Tommy’s was earned on the street, while Winston’s was earned by character. Character. How rarely I get to use that word when describing one of my neighbors in here.
Like Tommy, he was in prison for murder. That didn’t really bother me. I could wrap my brain around the crime of murder. It was the crimes I couldn’t wrap my brain around that bothered me. I always said, “Give me a murderer for a cellmate any day over a child molester or a rapist.” Most people have had homicidal thoughts, but never acted on them; only truly sick people have thoughts of having sex with children or raping women.
Winston had a firm handshake and always maintained unwavering eye contact. Very old school manners. He was a very intense listener, also a rarity in here. Most people ask you questions so they can tell you what’s on their minds. Pound for pound, Winston was one of the most well-rounded people I had met in prison. One of the few I emulated, especially when it came to helping others.
“Hey, Winston, how’s that wonderful wife of yours doing?” Tommy asked with a big, warm smile, sticking out his hand. Tommy could be very charming. Or, as he liked to say, joking about his younger, crazier self, “charming as a snake.”
Winston pumped Tommy’s hand. “She’s still the first thing I thank God for at the beginning of each day. Been praying for her a lot these days. Back and forth with the doctors. Still tryin’ to figure out what’s wrong. Keep her in your prayers, please, Tommy.”
“Winston,” Tommy said proudly, “you both are in my prayers daily.” Then, Tommy started telling Winston the talk on the street was that there would be a Christian musician at the chapel this upcoming Sunday. “What do you say we head on down there early and get us a good seat?”
It’s at times like this that if I closed my eyes and heard this conversation, I could fool my mind into thinking I was in the free world. Here are these two old men discussing family and faith like we’re at a bingo hall. A sense of calm always came over me in moments such as these. Moments that were all too rare in here.
They talked a little more about their upcoming Sunday plans. I stayed quiet, knowing not to interrupt their moment, and to give Tommy the respect of inviting me into their sphere. Respect was big with Tommy.
“Winston,” Tommy began, “you know West, don’t you?”
“Heck, yes, I know West. How are you, Mr. West?” Winston said as he pumped my hand. It was not lost on me that he used the salutation, “Mr.” The guy was a class act.
“Mr. Winston, I am well. Please don’t call me Mr. West. The only Mr. West I know is my father,” I said, shaking his hand back, exchanging the same affable smile and eye contact.
He laughed and told me to tell my father how much he loved reading his sports articles. He said my dad wrote like the sportswriters he grew up reading in New York, a style of writing that he said was sadly disappearing.
Tommy jumped back into the conversation at that point, telling Winston he wanted a personal favor. “West is my friend. He needs someone to show him around that law library. Someone to teach him what all those books mean. He’s smart as a whip. Can you do this for me?”
While I was flattered by the rare gesture of Tommy asking for a personal favor on my behalf, I also felt a little awkward because Winston couldn’t say no to Tommy.
Winston broke into a huge smile, reminding me of the late actor Scatman Crothers. “Tommy, it’d be my pleasure. Funny thing is, West, I was thinking about you a while ago when I saw Andy jamming you up by your cell.”
He went on about Andy and the jailhouse lawyers, echoing Tommy, saying the word was out that I was looking for a lawyer. He didn’t want to see me fall in with Andy. “He can’t help you at all. Just wants your money.”
I laughed. “You old men don’t miss much, do you?”
If they thought that was funny, they didn’t show it. I felt like I had killed the moment. Then, they broke out into laughter.
Tommy patted Mr. Winston on the back, saying he had spoken to him when he heard I was shopping my writ around. “Winston knows the score, and he thinks you can do this as well as or better than anyone in here. He’s also a whiz with those law books.”
“Mr. Winston,” I asked, “do you really believe I can do this?”
“Absolutely, West. You can do this. We will go to the law library and spend a few days going over all the reference books. After that you can ask me questions when you have them. Sound good?”
“West,” Tommy said, “our friend Winston likes that black bag coffee, the good stuff. Grab him a few bags next time you go to commissary.”
Tommy strolled away, leaving Mr. Winston and I alone. We made our arrangements to meet up at the law library. I had no idea what sort of world Mr. Winston was about to open to me.
A few days later, Mr. Winston and I were in the law library bright and early. We took advantage of the 4 a.m. sessions they were offering because there were fewer people there. He started me with the United States Constitution. We went over the amendments pertaining to due process.
The Constitution’s Fifth and 14th Amendments entitle all Americans to due process. This means fair treatment through the judicial system. This is your safeguard against the government illegally or arbitrarily denying you life, liberty, or property. If a person feels their rights to due process have been denied or violated, they are guaranteed an opportunity to address their grievances to a higher court. This, in theory, provides checks and balances.
Next, we got a Black’s Law Dictionary and looked up some pertinent terms.
In a criminal case such as mine where a person is incarcerated, the instrument for filing a due process claim with a higher court is called a writ of habeas corpus. The writ of habeas corpus is “the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action” (Harris v. Nelson, 394 U.S. 286, 290-91 (1969)).
A writ is nothing more than a written command to a court. Habeas corpus is a Latin phrase which translates to “you have the body.” The grounds on which a prisoner such as myself files a writ of habeas corpus is that their liberty is being illegally withheld from them by the government, that they are being illegally detained against their will, and in violation of their constitutional rights to due process. The claim is couched in the premise
that they did not receive a constitutionally fair trial and are, therefore, imprisoned unlawfully.
I told Winston it sounded too vague, too open-ended. Every guy in prison could claim to be innocent because they felt they didn’t receive a fair trial. The burden of proof had to be insanely high.
He said that this was where I had to keep my eye on the ball, legally speaking, and that there was nothing in the due process clause that mandated you must prove your innocence.
“Imprisoned unlawfully does not equal innocence,” Winston said. “These are two completely different concepts.”
He said that a majority of the inmates filing writs with the courts don’t think they’re innocent because that would be too high of a bar reach. Rather, they claim their constitutional rights were violated at their trials. The only remedy for such a claim, if proven, is a new trial.
I read every book Mr. Winston put in front of me.
The U.S. and Texas Constitutions guarantee their citizens one writ of habeas corpus for each due process claim. In my case, I have one shot at filing this writ. Everything from my conviction and sentencing must be covered in this document. After that, I will have exhausted all legal remedies for relief, and my conviction and sentence will be final. In prison, these writs are known as the “kitchen sink writs.” Meaning, you throw in everything, including the kitchen sink, because you will not get another chance.
“This is it, Mr. Winston,” I said. “This is my one shot. It’s a ton of pressure.”
He nodded. “Keep reading.”
The writ of habeas corpus sounded like an extraordinary legal tool. The library was full of law books showing successes, and failures, prisoners had been filing writs over decades. Cases were overturned, sentences vacated. Trials, it turned out, are rife with errors. As is often the case, it was what I was not seeing that disturbed me. The overwhelming percentage of these victories had the absence of two words: pro se.
